Seale & Ross, PLC v. Littleleaf Props.

SEALE & ROSS, PLC v. LITTLELEAF PROPERTIES, LLC AND JENNIFER LEE

No. 2021 CA 0083

Court of Appeals of Louisiana, First Circuit

October 4, 2021

NOT DESIGNATED FOR PUBLICATION

On Appeal from the 21^st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No. 2019-0003993 Honorable Brenda Bedsole Ricks, Judge Presiding

Kenneth L. Ross

Hammond, LA

Attorney for Plaintiff -Appellant, Seale & Ross, PLC

Matthew A. Sherman

Patrick R. Follette

Metairie, LA

Attorneys for Defendants -Appellees, Littleleaf Properties, LLC and Jennifer Lee

BEFORE: WHIPPLE, C.J., THERIOT, CHUTZ, WOLFE, AND HESTER, JJ.

HESTER, J.

Plaintiff, Seale & Ross, PLC, appeals a judgment of the trial court sustaining the peremptory exception asserting the objection of prescription filed by defendants, Littleleaf Properties, LLC and Jennifer Lee, and dismissing plaintiffs lawsuit against defendants, with prejudice. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 18, 2019, Seale & Ross, PLC ("Seale & Ross") filed a suit on open account against Littleleaf Properties, LLC ("Littleleaf) and Jennifer Lee (sometimes collectively referred to as "defendants"), alleging defendants were indebted to it in the amount of $10, 479.59 as of November 30, 2019. According to the allegations of the suit, defendants engaged Seale & Ross to represent them in a purchase agreement dispute and maintained an open account with Seale & Ross for legal services and charges incurred. The last payment on account was made by defendants on December 30, 2016, but Seale & Ross maintained that defendants did not pay the balance due, despite amicable demand.

Invoices, which were allegedly mailed to defendants, were attached as an exhibit to the suit. The "invoices" were actually a single statement showing legal fees charged from May 6, 2015 through October 17, 2016, as well as expenses and cost advancements from October 19, 2015 through October 18, 2016. The statement also reflected payments, dated December 30, 2016, from two different checks totaling $1, 100.00.

In response to the suit on open account, defendants filed peremptory exceptions asserting the objections of no cause of action and prescription, seeking to dismiss the suit with prejudice. According to defendants, Lee was employed by Seale & Ross as an attorney from 2013 until November 2016. During Lee's employ with Seale & Ross, suit was filed on behalf of Littleleaf, a limited liability company of which Lee is a member and co-owner, against Darren Short, seeking specific performance and damages caused by Short's breach of a purchase agreement. Lee engaged another attorney at Seale & Ross, Glen Galbraith, to assist her in the Littleleaf matter, and Galbraith counseled Lee, signed pleadings, and made court appearances.

As argued in defendants' memorandum in support of their exceptions, it was customary for the attorneys of Seale & Ross to handle their own personal legal matters through the firm, without payment. Further, defendants alleged that they neither opened nor maintained an open account with Seale & Ross and did not agree to pay for legal services Lee provided to her own company, Littleleaf. Instead, defendants maintained that because the amount and award of attorney's fees and costs were the only issues in the Littleleaf matter, Lee merely opened a file with Seale & Ross in order to track time and expenses as an item of damage.

The Littleleaf matter concluded in October 2016, and an award of legal fees and court costs was granted to Littleleaf, which award was allegedly based on a statement nearly identical to the statement attached as an exhibit to Seale & Ross's suit on open account. Pursuant to the terms of the judgment, payments for damages, identified as Littleleaf s attorney fees and court costs, were due monthly to Littleleaf. According to defendants, "[b]ecause the judgment awarded legal fees and costs, and the defendant in the [Littleleaf matter] was aware Ms. Lee was formerly an attorney at [Seale & Ross], the first two payments totaling $1, 100 were made payable to [Seale & Ross], without the consent of Ms. Lee."

While denying an account existed, defendants argued that the applicable prescriptive period for the suit on open account had run. October 18, 2016 was the date of the last work done on the file, which was more than three years prior to the filing date of December 18, 2019. See La. Civ. Code arts. 3494 and 3495. Defendants further maintained that the suit was prescribed on its face and that the payment made by a third party on the file without their consent did not serve to interrupt prescription.

Seale & Ross opposed the exceptions, arguing that the suit was not prescribed since payment was made on the account on December 30, 2016. Such payment consisted of a check from Darren Short made payable to Seale & Ross, which was delivered to Seale & Ross by Lee. According to Seale & Ross, the payment arrangement was confirmed in an alleged text message between Lee and Galbraith, stating as follows:

Also, re Little leaf/ Short, I have that $800 check from Darren I'll leave at SR to deposit. That acct still needs to be cleaned up. Will you write all my time off and apply the $800 to costs and your time. What do you want to do about the rest of your time?

The exceptions were heard by the trial court on August 31, 2020, at which time arguments, joint evidence, and the testimony of Galbraith were presented. At the conclusion of the hearing, the trial court sustained the exception of prescription, and pretermitted ruling on the exception of no cause of action. Judgment was signed on September 4, 2020, sustaining defendants' exception of prescription and dismissing Seale & Ross's lawsuit against defendants, with prejudice. From this judgment, Seale & Ross appeals, and assigns the following assignments of error: (1) the trial court erred in failing to find that Lee's December 28, 2016 text message was an acknowledgement of the debt that interrupted prescription; (2) the trial court erred in failing to find Lee delivered or sent payment to Seale & Ross, which was an acknowledgement of the debt; and (3) the trial court erred in excluding the printed text messages from evidence.

LAW AND ANALYSIS

Prescription is properly raised through a peremptory exception and must be specifically pled. La. Code Civ. P. art. 927. Prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 2004-0620 (La. 1/20/05), 891 So.2d 1268, 1275. Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden of proof shifts to the plaintiff to negate the presumption by establishing a suspension or interruption. Smith v Transportation Services Co. of Illinois, 2013-2788 (La. 7/1/14), 148 So.3d 903, 907, cert, denied. 574 U.S. 1154, 135 S.Ct. 1404, 191 L.Ed.2d 362 (2015); Taranto v. Louisiana Citizens Property Insurance Corp., 2010-0105 (La. 3/15/11), 62 So.3d 721, 726. Thus, unless prescription is evident from the face of the pleadings or from the documents attached thereto, the party raising the objection of prescription bears the burden of proof. Pizzolato v. Grier, 2018-0912 (La.App. 1st Cir. 3/14/19), 275 So.3d 273, 276, writ denied, 2019-00698 (La. 9/24/19), 279 So.3d 932; also see Dear v. Mabile, 93-1188 (La.App. 1st Cir. 5/20/94), 637 So.2d 745.

To meet the burden of proof on an exception raising the objection of prescription, evidence may be introduced at trial "to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." La. Code Civ. P. art. 931; Pizzolato, 275 So.3d at 276. When evidence is introduced at the hearing on the peremptory exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error standard of review. London Towne Condo. Homeowner's Ass'n v. London Towne Co., 2006-401 (La. 10/17/06), 939 So.2d 1227, 1231. In order to reverse the trial court's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. An appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

Louisiana Civil Code art. 3494 provides that an action on an open account is subject to liberative prescription of three years, which commences to run from the day payment is exigible pursuant to La. Civ. Code art. 3495. The three-year prescriptive period found in Article 3494 generally runs from the date of the last charge, credit entry, purchase, payment, or similar transaction on the account. Blanchard v. Cors & Bassett, 2012-0939 (La.App. 1st Cir. 4/11/13), 2013 WL 1491270, at *1 (unpublished); also see Lopez v. Evans, 2007-1243 (La.App. 1st Cir. 6/6/08), 992 So.2d 547, 549. More specifically, prescription of the balance due on an open account begins to run from the date of the last credit entry on account. Bell Fence & Galvanizing Co., Inc./Central Fence v. Bond, 41, 820 (La.App. 2d Cir. 1/24/07), 948 So.2d 353, 355; also see Ritchie Grocer Co. v. Dean, 162 So. 62, 63, 182 La. 518, 522 (La. 1935).

An examination of Seale & Ross's petition reveals that the petition was not prescribed on its face. Seale & Ross alleged that it was engaged to represent d...